24:0187(26)CA - Air Force, HQ Air Force Logistics Command, Wright-Patterson AFB, OH and AFGE Council 214 -- 1986 FLRAdec CA



[ v24 p187 ]
24:0187(26)CA
The decision of the Authority follows:


 24 FLRA No. 26
 
 DEPARTMENT OF THE AIR FORCE 
 HEADQUARTERS AIR FORCE LOGISTICS 
 COMMAND, WRIGHT-PATTERSON 
 AIR FORCE BASE, OHIO
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, COUNCIL 214, AFL-CIO
 Charging Party
 
                                            Case No. 5-CA-40259
 
                            DECISION AND ORDER
 
    I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 to the attached Administrative Law Judge's Decision filed by the
 Respondent.  The issue presented is whether the Respondent's failure and
 refusal to provide official time and travel and per diem expenses to
 employee Paul Palacio, who was subpoenaed by the General Counsel to
 appear in a related unfair labor practice hearing, constituted a failure
 to comply with section 7131(c) of the Federal Service Labor-Management
 Relations Statute (the Statute) and section 2429.13 of the Authority's
 Regulations in violation of section 7116(a)(1) and (8) of the Statute.
 In agreement with the Judge, we find that the Respondent's conduct
 violated the Statute.
 
    II.  Background
 
    Prior to the unfair labor practice hearing in the related case (Case
 No. 5-CA-30322, Department of the Air Force, Headquarters Air Force
 Logistics Command, Wright-Patterson Air Force Base, Ohio, 22 FLRA No. 56
 (1986)), the Respondent informed employee Palacio that his request for
 official time and travel and per diem expenses related to his appearance
 as a subpoenaed witness in that case was denied.  At the hearing in Case
 No. 5-CA-30322, Administrative Law Judge Chaitovitz denied Respondent's
 motion to revoke the subpoenas.  Palacio traveled at his own expense and
 used annual leave for that portion of the hearing during which he was a
 witness.  He had not been reimbursed by Respondent for these expenses,
 nor has the annual leave he used been restored.
 
    III.  Judge's Decision
 
    The Administrative Law Judge in this case, Judge Oliver, concluded
 that the Respondent's denial of official time and its refusal to provide
 travel and per diem expenses to Palacio constituted a failure to comply
 with section 7131(c) of the Statute and section 2429.13 of the
 Authority's Regulations.  He therefore found a violation of section
 7116(a)(1) and (8).
 
    In concluding that the Respondent's denial of official time
 constituted a failure to comply with section 7131(c) of the Statute,
 Judge Oliver noted that in Department of Health and Human Services,
 Social Security Administration, Great Lakes Program Service Center, 10
 FLRA, 510 (1982), the Authority held that once the participation of an
 employee has been deemed necessary by a designated agent of the
 Authority, the agency has no discretion to determine whether or not an
 employee should be on official time.  Judge Oliver also pointed out that
 the Authority has held that an agency is required to provide official
 time in the amount determined by the Authority's designated agent, and
 has rejected arguments like those by Respondent that such a
 determination is subject to a "reasonableness" standard.
 
    As to Judge Chaitovitz's denial in the related case of Respondent's
 motion to revoke the subpoenas, Judge Oliver noted that Judge Chaitovitz
 had the power, subject to Authority review, to determine whether
 Palacio's participation in the hearing was necessary.  Judge Oliver
 stated that the Authority's regulations provide procedures whereby Judge
 Chaitovitz's ruling could be reviewed in that case.  Accordingly, Judge
 Oliver concluded that Judge Chaitovitz's ruling could not be
 collaterally attacked in this case and that given the ruling by Judge
 Chaitovitz, "Respondent was obligated to provide Mr. Palacio with
 official time and follow the Authority procedures for review if it
 wished to challenge the Judge's decision."
 
    With respect to Respondent's refusal to pay Palacio's travel and per
 diem expenses, Judge Oliver noted that the Authority's interpretation of
 section 7131(c) of the Statute was set forth in section 2429.13 of its
 Regulations, which provides that "necessary transportation and per diem
 expenses shall be paid by the employing activity or agency" for an
 employee on official time whose participation in an Authority proceeding
 is deemed necessary.  The Judge found that, in view of section 2429.13
 of the Regulations, Respondent failed to comply with section 7131(c) of
 the Statute by refusing to provide travel and per diem expenses to
 Palacio and thereby violated section 7116(a)(1) and (8) of the Statute,
 as alleged by the General Counsel.
 
    IV.  Positions of the Parties
 
    The Respondent filed a motion with the Authority seeking
 consolidation of this case with the related unfair labor practice case
 noted above.  The Respondent also filed exceptions to the Judge's
 Decision, specifically to the Judge's conclusion that under section
 7131(c) of the Statute and section 2429.13 of the Regulations Palacio
 was entitled to travel and per diem expenses based on his entitlement to
 official time.  The Respondent's exceptions essentially repeat arguments
 made to the Judge challenging the lawfulness of the Authority's
 Regulations.  The Respondent also excepted to the Judge's recommended
 Order requiring that Palacio be provided with official time, contending
 that the validity of the subpoenas concerning Palacio had not yet been
 determined in the related case.
 
    V.  Analysis
 
    A.  Motion to Consolidate
 
    For the reasons stated in Department of the Air Force, Headquarters
 Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 22
 FLRA No. 56 (1986), the Authority denies the Respondent's motion to
 consolidate.
 
    B.  Official Time
 
    In agreement with the Judge, we find that the Respondent's denial of
 official time to Palacio constituted a failure to comply with section
 7131(c) of the Statute in violation of section 7116(a)(1) and (8) of the
 Statute.  As the Judge noted, once Palacio's participation was deemed
 necessary by an agent of the Authority, Respondent was obligated to
 comply or to seek review in that proceeding as provided in the
 Authority's Regulations;  no collateral attack is permitted.  In fact,
 Respondent did seek review of that determination in Case No. 5-CA-30322,
 and the Authority denied Respondent's exception.  Wright-Patterson Air
 Force Base, Ohio, 22 FLRA No. 56.
 
    C.  Travel and Per Diem Expenses
 
    The Authority also adopts the Judge's conclusion that the
 Respondent's denial of travel and per diem expenses to Palacio related
 to his required participation in an unfair labor practice hearing
 constituted a failure to comply with section 7131(c) of the Statute as
 interpreted in section 2429.13 of the Authority's Regulations.
 Therefore, Respondent's denial violated section 7116(a)(1) and (8) of
 the Statute.
 
    As noted above, Respondent in essence argues that section 2429.13 of
 our Regulations is not in accordance with law.  We disagree.
 
    In Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89
 (1983), the Supreme Court held that an agency's obligation under section
 7131(a) of the Statute to provide official time to employees
 representing an exclusive representative in the negotiation of a
 collective bargaining agreement does not require the agency to pay
 travel and per diem expenses incurred by those employees.  The Court
 noted that the Authority had previously construed section 7131(c) in its
 Regulations to require the payment of these expenses for employees on
 official time participating in proceedings before the Authority, and the
 Court stated:  "We, of course, express no view as to whether different
 considerations uniquely applicable to proceedings before the Authority
 might justify the FLRA's interpretation of section 7131(c)." BATF v.
 FLRA, 464 U.S. at 99 n.9.  In our view, our interpretation of section
 7131(c) as set forth in section 2429.13 of the Regulations is warranted
 for the reasons discussed below.
 
    Section 7131(c) of the Statute provides that "the Authority shall
 determine whether any employee participating for, or on behalf of, a
 labor organization in any phase of proceedings before the Authority
 shall be authorized official time for such purpose during the time the
 employee otherwise would be in a duty status." Pursuant to its authority
 under section 7134 of the Statute to prescribe regulations to carry out
 the provisions of the Statute, and consistent with its responsibilities
 under section 7105 of the Statute, the Authority promulgated section
 2429.13 of its Regulations as an interim regulation in 1979 which became
 final in 1980.  See 44 Fed. Reg. 44740, 44771 (1979) and 45 Fed. Reg.
 3482 (1980).
 
    Section 2429.13 was a continuation of the practice established by the
 Assistant Secretary of Labor for Labor-Management Relations for the
 conduct of hearings under Executive Order 11491, as amended.  That
 practice was reflected in 29 CFR Section 206.7(g), which was promulgated
 in 1973 and provided that employees who had been determined to be
 necessary as witnesses at a hearing shall be granted official time and
 "(i)n addition, necessary transportation and travel and per diem
 expenses shall be paid by the employing activity or agency." See 38 Fed.
 Reg. 30875 (1973).  That regulation was in effect throughout the
 remainder of the Executive Order program.  Presumably, Congress was
 aware of this practice when it enacted the Statute;  however, unlike in
 some other areas, there is no indication in the legislative history of
 any Congressional intent to change this practice.
 
    Moreover, section 2429.13 assists in enabling the Authority to
 develop complete records in proceedings before it so that the Authority
 may carry out its responsibilities under the Statute.  The regulation
 assures employees whose participation in a proceeding is deemed
 necessary by an Authority agent that they may testify without concern
 over whether authorization for necessary travel and per diem expenses
 will be granted by their employing agency.  It also serves to expedite
 the process by avoiding unnecessary procedural delays.
 
    Finally, our practice as set forth in section 2429.13 is consistent
 with that of other Federal agencies having analogous responsibilities to
 adjudicate matters involving federal employees.  See, for example, In re
 Maisto, 28 MSPR 436 (1985) (Merit Systems Protection Board ordered
 agency, pursuant to 5 C.F.R. Section 1201.33, to compensate employee who
 testified at Board hearing for the time spent in transit to and from the
 hearing and any time spent waiting to testify "as well as for expenses
 incurred by the actual transportation to and from the hearing.").
 
    Accordingly, in our view, section 2429.13 of the Authority's
 Regulations is in accordance with law.
 
    VI.  Conclusion
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority has reviewed the rulings
 of the Judge made at the hearing, finds that no prejudicial error was
 committed, and thus affirms these rulings.  The Authority has considered
 the Judge's Decision and the entire record in this case, and adopts the
 Judge's findings, conclusions and recommend Order to the extent that
 they are consistent with our decision.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the Department of the Air Force, Headquarters, Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio shall:
 
    1.  Cease and desist from:
 
    (a) Denying official time, transportation, and per diem expenses to
 an employee to participate in a hearing before the Federal Labor
 Relations Authority when such participation has been deemed necessary by
 any Administrative Law Judge, Regional Director, or other designated
 agent of the Authority.
 
    (b) In any like or related manner, interfering with, restraining, or
 coercing employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute.
 
    (a) Provide official time to Paul Palacio for his participation in an
 unfair labor practice hearing before the Authority in Case No.
 5-CA-30322 from March 12 through March 14, 1984, and make him whole for
 annual leave used for the purpose;  and, in addition, upon submission of
 a properly documented voucher, reimburse him for transportation and per
 diem expenses incurred.
 
    (b) Post at its facilities at Wright-Patterson Air Force Base and
 Kelly Air Force Base copies of the attached Notice on forms to be
 furnished by the Federal Labor Relations Authority.  Upon receipt of
 such forms, they shall be signed by the Commander, Air Force Logistics
 Command, and shall be posted and maintained for 60 consecutive days
 thereafter, in conspicuous places, including all bulletin boards and
 other places where notices to employees are customarily posted.
 Reasonable steps shall be taken to insure that such Notices are not
 altered, defaced, or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region V, Federal Labor
 Relations Authority in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.
 
    Issued, Washington, D.C., November 26, 1986.
 
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT deny official time to an employee to participate in a
 hearing before the Federal Labor Relations Authority when such
 participation has been deemed necessary by any Administrative Law Judge,
 Regional Director, or other designated agent of the Authority.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL provide official time to Paul Palacio for his participation
 in an unfair labor practice hearing before the Authority in Case No.
 5-CA-30322 from March 12 through March 14, 1984, and make him whole for
 annual leave used for that purpose;  and, in addition, upon submission
 of a properly documented voucher, reimburse him for transportation and
 per diem expenses incurred.
                                       (Activity) . . .
 
    Dated:  . . .  By:  (Signature) (Title) . . .
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region V, Federal Labor Relations Authority whose address is.
 175 West Jackson Boulevard, Suite 1359-A, Chicago, Illinois 60604 and
 whose telephone number is:  (312) 353-6306.
 
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No.: 5-CA-40259
 
 Department of the Air Force, Headquarters, 
 Air Force Logistics Command, Wright-Patterson 
 Air Force Base, Ohio
    Respondent
 
                                    and
 
 American Federation of Government Employees, 
 Council 214, AFL-CIO
    Charging Party
 
    Major Charles L. Brower, Esquire
    Major W. Kirk Underwood, Esquire
    For the Respondent
 
    Mr. Paul Palacio
    For the Charging Party
 
    Sandra LeBold, Esquire
    For the General Counsel, FLRA
 
    Before:  GARVIN LEE OLIVER
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This decision concerns an unfair labor practice complaint issued by
 the Regional Director, Region Five, Federal Labor Relations Authority,
 Chicago, Illinois, against the Department of the Air Force,
 Headquarters, Air Force Logistics Command, Wright-Patterson Air Force
 Base, Ohio (Respondent) based on an amended charge filed by the American
 Federation of Government Employees, Council 214, AFL-CIO (Charging Party
 or Union).  The complaint alleged, in substance, that Respondent
 violated sections 7116(a)(1) and (8) of the Federal Service
 Labor-Management Relations Statute, 5 U.S.C. Section 7101 et seq. (the
 Statute), by failing and refusing to comply with section 7131(c) of the
 Statute and section 2429.13 of the Authority's Rules and Regulations.
 More specifically, the complaint alleges that Respondent failed and
 refused to provide official time, travel, and per diem expenses to
 Respondent's employee, Paul Palacio, to participate in an unfair labor
 practice hearing before the Authority in Case No. 5-CA-30322, as
 requested and deemed necessary by a Regional Director of the Authority.
 The complaint also alleges that Respondent violated section 7116(a)(1)
 and (8) by each of the alleged acts.
 
    Respondent's answer admitted the jurisdictional allegations as to the
 Respondent, Charging Party, and the charge, but denied any violation of
 the Statute.
 
    A hearing was held in Dayton, Ohio.  The Respondent, Charging Party,
 and the General Counsel were represented and afforded full opportunity
 to be heard, adduce relevant evidence, examine and cross-examine
 witnesses, and file post-hearing briefs.  Respondent and the General
 Counsel filed helpful briefs.  Based on the entire record, including my
 observation of the witnesses and their demeanor, I make the following
 findings of fact, conclusions of law, and recommendations.
 
                             Findings of Fact
 
    1.  The American Federation of Government Employees, AFL-CIO (AFGE)
 is the collective bargaining representative of a consolidated
 appropriate unit of Respondent's employees located at, among other
 places, Wright-Patterson Air Force Base (AFB), Dayton, Ohio;  Hill AFB,
 Ogden, Utah;  Robins AFB, Warner Robins, Georgia;  McClellan AFB,
 Sacramento, California;  Kelly AFB, San Antonio, Texas;  and Tinker AFB,
 Oklahoma City, Oklahoma.
 
    2.  At all times material herein the Charging Party, AFGE, Council
 214, has been an agent of AFGE with respect to bargaining with
 Respondent on behalf of the collective bargaining unit.
 
    3.  At all times material, Paul Palacio has been, and is now,
 president of the Charging Party.  As president, Mr. Palacio is assigned
 to Wright-Patterson AFB in Dayton, Ohio, where Headquarters, Air Force
 Logistics Command (AFLC) is located, although technically Palacio is
 assigned to Kelly AFB as a machine tool operator.  Section 4.12 of the
 Master Labor Agreement between Respondent and the Charging Party
 authorizes one Union representative to be on 100% official time at
 Headquarters, AFLC.  Palacio is now, and has been at various times, that
 representative, as more fully explained herein.
 
    4.  On February 1, 1984, the Regional Director, Federal Labor
 Relations Authority, Chicago Region, Chicago, Illinois issued a subpena
 to Palacio at the request of Judith Ramey, Counsel for the General
 Counsel, FLRA, requiring that he appear before an administrative Law
 Judge on March 12, 1984 at the Murray Federal Building, Oklahoma City,
 Oklahoma to testify in the matter of Department of the Air Force,
 Headquarters AFLC, Wright-Patterson Air Force Base, Ohio (Respondent)
 and American Federation of Government Employees, Council 214, (Charging
 Party), Case No. 5-CA-30322, involving the same parties as the instant
 case.  The subpena stated on its face:
 
          NOTICE TO WITNESS - Witness fees and mileage shall be paid by
       the party at whose instance the witness appears, except that any
       witness who is employed by the Federal Government shall be granted
       official time and be paid necessary transportation and per diem
       expenses by the employing activity or agency.
 
    5.  The complaint in Case No. 5-CA-30322 alleged that on or about the
 month of February 1983, 63 supervisors, each named in the complaint,
 established and/or implemented a quota system for rating employees under
 the civilian potential appraisal system under which system supervisors
 rated employees in accordance with established numeric quotas for the
 distribution of rating scores;  that the use of quotas constituted a
 change in conditions of employment;  and that Respondent did not give
 the Union notice and opportunity to bargain about the impact and
 implementation of such change in violation of section 7116(a)(1) and (5)
 of the Statute.  Eleven of the 63 supervisors were assigned to
 Wright-Patterson AFB, Ohio;  16 to Hill AFB, Utah;  6 to Robins AFB,
 Georgia;  11 to McClellan AFB, California;  3 to Kelly AFB, Texas, and
 16 to Tinker AFB, Oklahoma.  The complaint did not allege that these
 quotas were implemented in accordance with a command-wide policy.  The
 Regional Director ordered the case to be heard at Dayton, Ohio.
 
    6.  Due to the large number of geographically dispersed witnesses in
 Case No. 5-CA-30322, the Administrative Law Judge assigned to hear the
 case, Samuel A. Chaitovitz, ruled that the hearing would be held in
 three locations:  Dayton, Ohio, Oklahoma City, Oklahoma and Macon,
 Georgia.  Mr. Palacio was also subpenaed to appear on February 8, 1984
 in Dayton, Ohio and April 11, 1984 in Macon, Georgia.  /1/
 
    7.  On February 6, 1984, Palacio sent a copy of his three subpenas to
 General James P. Mullins and requested official time, travel and per
 diem expenses in order to comply with the subpenas.
 
    8.  On February 8, 1984, the first phase of the hearing opened in
 Dayton, Ohio.  Major Charles Brower, counsel for the Respondent, moved
 that Administrative Law Judge Chaitovitz revoke Palacio's subpenas for
 the Oklahoma City and Macon phases of the hearing on the grounds that
 his testimony was not relevant to the proceeding at those locations.
 The motion was argued, and Administrative Law Judge Chaitovitz
 questioned counsel, as well as Mr. Palacio, who was representing the
 Charging Party, concerning the necessity for Palacio's testimony in
 Oklahoma City and Macon.  /2/ When asked by Judge Chaitovitz, "Why is he
 necessary?," Ms. Ramey, Counsel for the Geeral Counsel, replied,
 
          . . . (T)he General Counsel does not know all of what testimony
       will be presented by Respondent at the other locations (Oklahoma
       City and Macon).  There are witnesses on the tentative witness
       list who have not been discussed and who even Respondent's counsel
       has indicated he wasn't sure what their testimony might be because
       they had been recommended to him as witnesses . . . by counsel at
       the other bases.  Consequently, . . . since I don't know what
       rebuttal might be needed, I at least need to have Mr. Palacio
       present as somebody who might possibly be able to rebut that
       testimony.  The General Counsel deems him to be a necessary
       witness and the Regional Director has issued the necessary
       subpoenas.
 
    Judge Chaitovitz also ascertained from Mr. Palacio that he had been
 the person who had been dealing with management generally on the problem
 and was the person who received complaints from the various regional and
 field representatives.  Respondent's counsel countered that Mr. Palacio
 possessed only hearsay knowledge of what had happened at the other
 locations and that local union presidents at the other locations "can
 satisfy any role that she thinks Mr. Palacio might be able to serve her
 if he were at her side at these various locations." After hearing
 argument, Judge Chaitovitz denied the motion to revoke, ruling as
 follows:
 
          . . . I recognize that in deciding whether a witness is
       necessary, I am not to superimpose my judgment for that of counsel
       trying a case.  That counsel may have another witness that may or
       may not serve the same purpose.  I don't think if a witness is
       reasonably related that I can say, "No, I'm going to make you use
       someone else." I don't think my authority goes that far.  I am not
       going to revoke the subpoena, but I will permit the subpoena to
       stand, because I think that Mr. Palacio is -- may reasonably be
       expected to have relevant information that can be admissible with
       respect to what happened at these other bases.
 
    9.  During the Dayton phase of the hearing on February 8, 1984, Mr.
 Palacio testified during General Counsel's presentation of its
 case-in-chief.  He received, or, under the contract continued on,
 official time.  No travel and per diem expenses were required for
 Palacio since he lives in Dayton.
 
    10.  By letter dated March 1, 1984, Respondent informed Palacio, in
 response to his February 6, 1984 request, that travel and per diem
 expenses would not be provided by Respondent.
 
    11.  By letter to Respondent dated March 6, 1984 Palacio repeated his
 request for official time and travel and per diem expenses in order to
 comply with the subpenas.
 
    12.  On March 8, 1984 Respondent reiterated its position that payment
 of Palacio's travel expenses for the hearing in Oklahoma City and Macon
 was not appropriate from Air Force funds.  Respondent claimed
 participation "is both redundant and irrelevant." Respondent noted that
 Palacio had already testified during the Dayton phase of the case, that
 he had been subpoenaed as a mere "potential rebuttal" witness, and that
 his "potential rebuttal" testimony would be "nothing more than hearsay
 evidence having little or no probative value." Respondent also stated
 that the Oklahoma City phase was scheduled to last two weeks (March
 12-23, 1984), and Mr. Palacio would not be needed as a potential
 rebuttal witness until late in that 2-week period.  Respondent noted
 that Mr. Palacio was already scheduled to be on official time in
 Oklahoma City beginning March 16, 1984 for several days in connection
 with contract negotiations.  Respondent stated it would have no
 objection to his taking official time during the particular period in
 order to provide the testimony.
 
    13.  On March 9, 1984, Palacio sent a copy of his Oklahoma City
 subpena to E. Villanueva, his supervisor at Kelly AFB, Texas and
 requested approval of official time to attend the hearing as directed by
 the subpena.  /3/ In the alternative, Mr. Palacio requested annual leave
 to attend the hearing, but made it clear that this request was made
 under protest.  The Respondent answered Mr. Palacio in a letter dated
 March 16, 1984, denying him official time but approving his annual leave
 request.
 
    14.  Palacio traveled to Oklahoma City, Oklahoma from Dayton, Ohio
 and testified at the hearing, which took place from March 12 through
 March 14, 1984.  /4/ Palacio was called during the merits of the Kelly
 AFB case.  He was asked two questions.  He apparently remained until the
 end of the hearing at the request of the General Counsel.  Palacio did
 not tesify as a rebuttal witness.  Palacio used annual leave during this
 period and was not reimbursed by Respondent for his transportation and
 per diem expenses.  /5/
 
               Discussion, Conclusions, and Recommendations
 
    Position of the Parties
 
    The complaint alleges that Respondent failed to comply with section
 7131(c) of the statute /6/ and section 2429.13 of the Authority's Rules
 and Regulations /7/ by refusing to provide official time, travel, and
 per diem expenses to Respondent's employee, Paul Palacio, to participate
 in an unfair labor practice hearing, as requested and deemed necessary
 by the Regional Director of the Authority, thus violating sections
 7116(a)(1) and (8) of the Statute.  /8/
 
    With respect to official time, Respondent defends on the grounds that
 Judge Chaitovitz abused his discretion when he determined that Palacio
 was a necessary witness.  Respondent claims that the General Counsel's
 basis for subpenaing Palacio was incredibly vague;  Mr. Palacio
 possessed only hearsay knowledge of the allegations to be litigated;
 local Union officials at Oklahoma City and Macon were available as
 witnesses and just as suitable;  and Mr. Palacio had already testified
 during the Dayton phase with regard to all of his first-hand knowledge.
 Respondent contends that even if Judge Chaitovitz properly determined
 that Mr. Palacio was a "necessary" witness, that determination should be
 subject to the application of a "reasonableness test."
 
    The General Counsel maintains that the need for Mr. Palacio's
 participation as a witness was made by the General Counsel prior to the
 time the hearing had been convened;  that Respondent was, therefore,
 obligated to provide Palacio official time, travel, and per diem
 according to Authority decisions;  the General Counsel's determination
 was not subject to a "reasonableness" standard;  and if Respondent
 disagreed with Judge Chaitovitz's ruling on its motion to revoke
 Palacio's subpena, it must obtain review of that decision by filing
 exceptions in that case and may not litigate the matter in this unfair
 labor practice proceeding.
 
    Official Time
 
    As noted, section 7131(c) of the Statute empowers the Authority to
 make determinations as to whether employees participating in proceedings
 before it shall be authorized official time.
 
    In this case the Regional Director, prior to the hearing, determined
 that Palacio's participation as a witness in the hearing was necessary
 by issuing a subpena at the request of counsel for the General Counsel.
 Under section 7104(f)(2)(B) of the Statute the General Counsel is
 empowered to "file and prosecute complaints" and such express authority
 necessarily encompasses the manner in which the complaints are to be
 prosecuted.
 
    The Authority has held that once the participation of an employee has
 been deemed necessary by a designated agent of the Authority, there is
 no discretion in the agency to determine whether or not an employee
 should be on official time.  Department of Health and Human Services,
 Social Security Administration, Great Lakes Program Service Center, 10
 FLRA 510, 512 (1982).  The Authority has also held that an agency is
 required to provide official time in the amount requested by the
 designated agent of the Authority and it has rejected recommended
 decisions which would have applied a "reasonableness" standard to the
 request.  Department of the Treasury, Internal Revenue Service, 15 FLRA
 No. 108, 15 FLRA 506 (1984);  Department of the Treasury, Bureau of
 Alcohol, Tobacco and Firearms, 13 FLRA No. 94, 13 FLRA 558 (1983);
 Department of Health and Human Services, Social Security Administration
 Great Lakes Program Service Center, 10 FLRA No. 90, 10 FLRA 510 (1982).
 
    The Authority has held that "once an unfair labor practice hearing
 has convened and before the close of the hearing, . . . the
 Administrative Law Judge has the power under the Authority's Rules and
 Regulations to determine, subject to review by the Authority, whether
 the participation of any employee in any proceeding before the Authority
 is necessary. . . ." Norfolk Naval Shipyard, Portsmouth, Virginia, 5
 FLRA No. 105, 5 FLRA 788 (1981).  At the outset of the hearing in Case
 No. 5-CA-30322, Judge Chaitovitz heard argument as to whether Mr.
 Palacio was a necessary witness in connection with Respondent's motion
 to revoke Palacio's subpenas.  Judge Chaitovitz denied to motion to
 revoke.  The Authority's Rules and Regulations, section 2423.26-29 and
 2429.7(e), provide the procedures whereby his ruling may be reviewed in
 that case.  His ruling may not be collaterally attacked here as an abuse
 of discretion.  Given the ruling by the Administrative Law Judge,
 Respondent was obligated to provide Mr. Palacio with official time and
 follow the Authority procedures for review if it wished to challenge the
 Judge's decision.
 
    The Respondent's denial of official time to Mr. Palacio constitutes a
 failure to comply with section 7131(c) in violation of section
 7116(a)(1) and (8) of the Statute, as alleged.
 
    Travel and Per Diem Expenses
 
    With respect to transportation and per diem expenses, the Respondent
 asserts that section 7131(c) of the Statute does not require an agency
 to pay an employee transportation or per diem expenses;  5 C.F.R.
 Section 2429.13 is not in accordance with law;  entitlement to such
 expenses is governed solely by 5 U.S.C. Section 5751 and Section 5702;
 5 C.F.R. Section 2429.13 constitutes and unauthorized assumption by the
 FLRA of a major policy decision properly made by Congress;  and, even if
 5 C.F.R. Section 2429.13 is given effect, Judge Chaitovitz abused his
 discretion when he determined that Palacio was a necessary witness and
 that determination should have been subject to a "reasonableness" test.
 
    As noted, section 7131(c) of the Statute empowers the Authority to
 make determinations as to whether employees participating in proceedings
 before it shall be authorized official time.  Section 7131(c) says
 nothing about transportation or per diem expenses.  The Authority,
 however, in Interpretation and Guidance, 2 FLRA 265, 270 (1979), in
 connection with the interpretation of section 7131(a), noted that it had
 previously interpreted section 7131(c), in section 2429.13 of its
 Regulations, as entitling the employee on such official time to
 transportation and per diem expenses.  See also U.S. Department of
 Justice, Federal Prison System, 10 FLRA 662 (1982);  Department of
 Health and Human Services, Social Security Administration, Great Lakes
 Program Service Center, 10 FLRA 510 (1982;  Department of the Treasury,
 Bureau of Alcohol, Tobacco and Firearms, 10 FLRA 10 (1982).
 
    In Bureau of Alcohol, Tobacco and Firearms v. FLRA, 114 LRRM 3393,
 3399, 104 S. Ct. 439 (1983), the Supreme Court concluded that the
 obligation of an agency under section 7131(a) of the Statute to provide
 official time to employees representing an exclusive representative in
 the negotiation of a collective bargaining agreement does not encompass
 the payment of travel expenses and per diem allowances.  The Court
 explicitly stated that there is no reference in the Statute or its
 legislative history to travel expenses and per diem allowances.  114
 LRRM at 3399.  The Supreme Court noted that the Authority had previously
 construed section 7131(c) in its regulations to require the payment of
 travel expenses and per diem expenses.  The Court stated, "The fact that
 the Authority interpreted two similar provisions of the Act consistently
 does not, however, demonstrate that either interpretation is correct.
 We, of course, express no view as to whether different considerations
 uniquely applicable to proceedings before the Authority might justify
 the FLRA's interpretation of Section 7131(c)." 114 LRRM at 3397, n. 9.
 
    The Authority's regulations remain unchanged, and I am bound by its
 interpretation of section 7131(c).  Respondent's arguments that 5 C.F.R.
 Section 2429.13 is not in accordance with law and constitutes an
 unauthorized assumption by the FLRA of a major policy decision properly
 made by Congress are more properly addressed by the Authority and the
 courts.  Respondent's position that Judge Chaitovitz abused his
 discretion when he determined that Palacio was a necessary witness and
 that determination should have been subject to a "reasonableness" test
 are without merit for the reasons set out above.  The Authority has
 specifically rejected a "reasonableness test," and Respondent may
 properly obtain review of Judge Chaitovitz's exercise of discretion in
 Case No. 5-CA-30322.
 
    It is noted that Palacio's participation as a witness subpenaed at
 the request of the General Counsel also brought into operation section
 2429.14 of the regulations which also references section 2429.13.
 Section 2429.14 provides as follows:
 
          Section 2429.14 Witness fees.
 
          (a) Witnesses (whether appearing voluntarily, or under a
       subpena) shall be paid the fee and mileage allowances which are
       paid subpenaed witnesses in the courts of the United States:
       Provided, That any witness who is employed by the Federal
       Government shall not be entitled to receive witness fees in
       addition to compensation received pursuant to Section 2429.13.
 
    The statutory basis for section 2429.14 of the Regulations is section
 7132 of the Statute /9/ which authorizes the Authority and its designees
 to issue subpenas requiring the attendance and testimony of witnesses.
 It provides that "(c) Witnesses (whether appearing voluntarily or under
 subpena) shall be paid the same fee and mileage allowances which are
 paid subpenaed witnesses in the courts of the United States." 28 U.S.C.
 Section 1821 governs the payment of fees, per diem, and mileage to
 witnesses in the courts of the United States.  In general, witness fees
 and mileage are paid by the party at whose instance the witness appears,
 subject to the court's discretion to assess such expenses against a
 party as part of the taxable costs of the suit.  With regard to
 witnesses who are employees of the United States, however, 5 U.S.C.
 Section 5751 specifically provides the procedure for the payment of the
 travel expenses of a witness who is summoned to testify on behalf of the
 United States, or to testify in his official capacity or produce records
 on behalf of a party other than the United States.  /10/ 5 U.S.C.
 Section 5751(a) provides as follows:
 
          Section 5751.  Travel expenses of witnesses
 
          (a) Under such regulations as the Attorney General may
       prescribe an employee as defined by section 205 of this title
       (except an individual whose pay is disbursed by the Secretary of
       the Senate or the Clerk of the House of Representatives) summoned,
       or assigned by his agency, to testify or produce official records
       on behalf of the United States is entitled to travel expenses
       under subchapter I of this chapter.  If the case involves the
       activity in connection with which he is employed, the travel
       expenses are paid from the appropriation otherwise available for
       travel expenses of the employee under proper certification by a
       certifying official of the agency concerned.  If the case does not
       involve its activity, the employing agency may advance or pay the
       travel expenses of the employee, and later obtain reimbursement
       from the agency properly chargeable with the travel expenses.
 
    The implementing regulations of the Attorney General are contained in
 28 C.F.R. Part 21 (1984) and provide, in part, that an employee
 qualifying for the payment of travel expenses shall be paid at the rate
 and in the amounts allowable for other purposes under the provisions of
 5 U.S.C. Section 5701-5708.  (11) See 28 C.F.R. Section 21.1(c) (1984).
 
    In order for the employing agency to be chargeable for the employee's
 travel expenses under section 5751(a), it must be found that the
 employee was "summoned, or assigned by his agency to testify . . . on
 behalf of the United States" and "the case involves the activity in
 connection with which he is employed." Cf. B-160120, 46 Comp. Gen. 613
 (1967).  It is unnecessary to determine whether section 5751(a) would
 apply in this instance as the complaint does not allege a specific
 violation of section 7132(c) of the Statute and the General Counsel has
 made no contention that Respondent was obligated to pay Palacio's travel
 expenses pursuant to 5 U.S.C. Section 5751(a) or any other provision of
 law other than section 7131(c).
 
    Since the Authority has ruled that the obligation of an agency under
 section 7131(c) of the Statute encompasses the payment of travel
 expenses and per diem allowances, I am constrained to conclude that the
 Respondent failed to comply with section 7131(c) by its refusal to
 provide travel and per diem expenses to the employee and thereby
 violated Section 7116 (a)(1) and (8) of the Statute, as alleged.
 
    Based on the foregoing findings and conclusions, it is recommended
 that the Authority issue the following Order:
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Statute, the
 Authority hereby orders that the Department of the Air Force,
 Headquarters, Air Force Logistics Command, Wright-Patterson Air Force
 Base, Ohio shall:
 
    1.  Cease and desist from:
 
          (a) Denying official time, transportation, and per diem
       expenses to an employee to participate in a hearing before the
       Federal Labor Relations Authority when such participation has been
       deemed necessary by any Administrative Law Judge, Regional
       Director, or other designated agent of the Authority.
 
          (b) In any like or related manner, interfering with,
       restraining, or coercing employees in the exercise of their rights
       assured by the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute.
 
          (a) Provide official time to Paul Palacio for his participation
       in an unfair labor practice hearing before the Authority in Case
       No. 5-CA-30322 from March 12 through March 14, 1984, and make him
       whole for annual leave utilized for that purpose;  and, in
       addition, upon submission of a properly documented voucher,
       reimburse him for transportation and per diem expenses incurred.
 
          (b) Post at its facilities at Wright-Patterson Air Force Base
       and Kelly Air Force Base copies of the attached Notice marked
       "Appendix" on forms to be furnished by the Authority.  Upon
       receipt of such forms, they shall be signed by an authorized
       official and shall be posted and maintained by him for 60
       consecutive days thereafter, in conspicuous places, including all
       bulletin boards and other places where notices to employees are
       customarily posted.  The Respondent shall take reasonable steps to
       insure that such notices are not altered, defaced, or covered by
       any other material.
 
          (c) Pursuant to 5 C.F.R. section 2423.30 notify the Regional
       Director, Region Five, Federal Labor Relations Authority, Chicago,
       Illinois, in writing, within 30 days from the date of this order,
       as to what steps have been taken to comply herewith.
 
                                       /s/ Garvin Lee Oliver
                                       Administrative Law Judge
 
    Dated:  February 27, 1985
    Washington, DC
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (1) The Macon subpena was subsequently revoked by the General
 Counsel.  Mr. Palacio was not present for the Macon phase of the hearing
 either as a witness or as representative of the Charging Party.
 
    (2) At the same time, Judge Chaitovitz denied a motion filed by
 Palacio that Respondent pay his travel and per diem expenses in Oklahoma
 City and Macon to act as the Charging Party's representative.  Palacio
 represented the Charging Party in Dayton and Oklahoma City.  The
 Charging Party did not enter an appearance in Macon.
 
    (3) Due to the fact that Palacio was under subpena and required to
 leave Wright-Patterson AFB, he had delegated his position as the Union
 representative at Headquarters, AFLC, to another Union official and,
 therefore, was no longer on 100% official time.
 
    (4) Although it was originally anticipated that the hearing would
 take two weeks, the time was drastically reduced due to various
 stipulations and the General Counsel's withdrawal of allegations against
 12 of the 31 supervisors named from Tinker, Kelly, and Hill AFBs.
 
    (5) Palacio was on official time from March 16, 1984 to April 26,
 1984 as chief negotiator for the Union during the negotiations of the
 master labor agreement at Tinker Air Force Base, Oklahoma.
 
    (6) Section 7131(c) provides:
 
          (c) Except as provided in subsection (a) of this section, the
       Authority shall determine whether any employee participating for,
       or on behalf of, a labor organization in any phase of proceedings
       before the Authority shall be authorized official time for such
       purpose during the time the employee otherwise would be in a duty
       status.
 
    (7) Sections 2429.13 provides:  Section 2429.13 Official time.
 
    If the participation of any employee in any phase of any proceeding
 before the Authority, including the investigation of unfair labor
 practice charges and representation petitions and the participation in
 hearings and representation elections, is deemed necessary by the
 Authority, the General Counsel, any Administrative Law Judge, Regional
 Director, Hearing Officer, or other agent of the Authority designated by
 the Authority, such employee shall be granted official time for such
 participation, including necessary travel time, as occurs during the
 employee's regular work hours and when the employee would otherwise be
 in a work or paid leave status.  In addition, necessary transportation
 and per diem expenses shall be paid by the employing activity or agency.
 
    (8) Section 7116(a)(1) and (8) provides:
 
    (a) For the purpose of this chapter, it shall be unfair labor
 practice for an agency -
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                       * * * *
 
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
    (9) Section 7132 provides, in relevant part:
 
          (a) Any member of the Authority, the General Counsel, or the
       Panel, any administrative law judge appointed by the Authority
       under section 3105 of this title, and any employee of the
       Authority designated by the Authority may --
 
          (1) issue subpenas requiring the attendance and testimony of
       witnesses and the production of of documentary or other evidence
       from any place in the United States(.)
 
                       . . . .
 
 
          (c) Witnesses (whether appearing voluntarily or under subpena)
       shall be paid the same fee and mileage allowances which are paid
       subpenaed witnesses in the courts of the United States.
 
    (10) 5 U.S.C. Section 6322 provides that an employee summoned, or
 assigned by his agency, to testify on behalf of the United States, or to
 testify in his official capacity for a party other than the United
 States "is performing official duty during the period. . . ." See also 5
 C.F.R. Section 1201.33 (1984), which provides that Federal employee
 witnesses testifying before the Merit System Protection Board at the
 request of the presiding officer are in official duty status.
 
    (11) 5 U.S.C. Sections 5702-5708 relate to the payment and
 administration of travel expenses and per diem allowances for employees
 acting in an official capacity.
 
 
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT deny official time to an employee to participate in a
 hearing before the Federal Labor Relations Authority when such
 participation has been deemed necessary by any Administrative Law Judge,
 Regional Director, or other designated agent of the Authority.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.